Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Insta Image Pty Ltd v KD Kanopy Australasia Pty Ltd [2008] FCAFC 139
PATENTS – obviousness – collapsible canopy framework – introduction of U-shaped mount with non-compressive pin to give stability to frame – claim was for combination of discrete technologies not only for introduction of novel mount with non-compressive pin – history of prior US patents for collapsible canopy frameworks – existence of U-shaped mounts formed part of common general knowledge in Australia. Held: the combination was not obvious, having regard to common general knowledge in Australia.
PATENTS – novelty - collapsible canopy framework – introduction of U-shaped mount with non-compressive pin to give stability to frame – claim was for combination of discrete technologies not only for introduction of novel mount with non-compressive pin – evidence that earlier collapsible canopy (the Original) was used at motocross and jet-ski races – Original anticipated all claims except one – whether information disclosing the invention had been made "publicly available" as required by s 7(1) of the Patents Act 1990 (Cth) at the race meetings. Held: it had.
PATENTS – construction – identifying "the invention, so far as claimed in any claim" for purposes of s 18(1) of the Patents Act 1990 (Cth).
WORDS AND PHRASES – "the invention, so far as claimed in any claim" – "publicly available".
Patents Act 1990 (Cth) ss 18(1); 7(1), (2), (3); Schedule 1 ("prior art base", "prior art information") Atlantis Corp Pty Ltd v Schindler (1997) 39 IPR 29 cited Boyce v Morris Motors Ltd (1927) 44 RPC 105 referred to Re Bristol-Myers Co's Application [1969] RPC 146 cited Bristol-Myers Squibb Co v F H Faulding & Co Ltd (2000) 97 FCR 524 cited British Thomson-Houston Co Ltd v Corona Lamp Works Ltd (1922) 39 RPC 49 cited Cullen v Welsbach Light Co of Australasia Ltd (1907) 4 CLR 990 cited Decor Corp Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 cited Fomento Industrial S.A. v Mentmore Manufacturing Co Ltd [1956] RPC 87 cited Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd (2005) 67 IPR 230 cited Hill v Evans (1962) 31 LJ CL 456 cited Humpherson v Syer (1887) 4 RPC 407 cited Interlego AG v Toltoys Pty Ltd (1973) 130 CLR 461 cited Jupiters Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 referred to Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 referred to Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2005) 68 IPR 459 referred to Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 72 IPR 447 followed Merck & Co Inc v Arrow Pharmaceuticals Ltd (2006) 154 FCR 31 cited Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1997) 137 CLR 228 referred to Minnesota Mining & Manufacturing Co v Tyco Electronics Pty Ltd (2002) 53 IPR 32 cited Old Digger Pty Ltd v Azuko Pty Ltd (2000) 51 IPR 43 referred to PLG Research Ltd v Ardon International Ltd [1993] FSR 197 cited Rosedale Associated Manufacturers Ltd v Carlton Tyre Saving Co Ltd [1960] RPC 59 cited Stanway Oyster Cylinders Pty Ltd v Marks (1996) 66 FCR 577 referred to Sunbeam Corporation v Morphy-Richards (Aust) Pty Ltd (1961) 180 CLR 98 cited Welch Perrin & Co Pty Ltd v Worrel (1961) 196 CLR 588 cited RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1989) 25 FCR 565 cited WM Wrigley Jr Co v Cadbury Schweppes Pty Ltd (2005) 66 IPR 298 distinguished
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